A man who forced himself on his former partner as their child slept nearby has failed in his bid to have his conviction overturned.
The man, whose name is suppressed, was found guilty at trial of indecent assault and sentenced to 15 months' imprisonment earlier this year, but took his fight to the Court of Appeal recently in an attempt to clear his name.
Justices French, Williams and Woolford, however, ruled there was no miscarriage of justice.
At the time of the offence, the defendant had returned to Dunedin from Australia and organised to meet his daughter with his ex-girlfriend.
The trio had visited the girl's kindergarten and then went home, when the man pounced. Their daughter had fallen asleep at the time, the court heard.
The defendant became anxious when she became aware he was following her around the house. The man then prevented her from leaving her bedroom, picked her up and threw her on the bed.
In that vulnerable position, the defendant pinned the victim down ''and pressed himself to her, rubbing himself against her sexually''.
Eventually he got off after her repeated requests.
At trial, the defence case was that the woman had responded positively to the advances and was in fact the first to willingly move to the bed.
It was argued that despite her claims, she had contact with the defendant repeatedly over the following days.
''Defence counsel argued at trial that the complaint was false and was made because the appellant had threatened to tell the complainant's boyfriend what had happened between them in the bedroom,'' the judgement said.
However, that version of events was never put to the victim during the trial.
''Counsel was clearly under an obligation to put these matters to the complainant, the appeal court judges said.
''That said, we are quite satisfied that counsel's failure ... did not cause a miscarriage of justice.''
They pointed to evidence she gave under cross-examination.
''He got right on top of me and prevented me from moving and held me down with his hands,'' the woman said.
The judges said it was highly likely had the defence case been put to her, she would have flatly rejected it.
''In the end, the jury decided to believe the complainant, a view they were perfectly entitled to take.''
